Divorce Mediation, How Does It Work?

Key Takeaways:

• Mediation is a form of alternative dispute resolution (ADR).
• Facilitated by a third party, spouses use this process to reach agreements on divorce, custody, visitation, support payments, and most other cases.
• Mediation is not legally binding, and both parties must agree to a settlement; neither party can compel a settlement.
• A professional code of conduct compels mediators to keep information confidential.
• A judge must sign off on any divorce decision, but may not if a deal skews too far to one side.
• You can choose from evaluative, facilitative, and transformative mediation.

When dissolving a marriage, many people think of intense courtroom trials. That, however, isn’t the only option. Other tools provide alternative routes. One of the most popular and effective is divorce mediation.

What is Divorce Mediation?

Mediation is a form of alternative dispute resolution (ADR). As the name implies, this provides a legal path that isn’t litigation. In civil suits, including divorce and child custody cases, both sides meet in mediation to attempt to reach a settlement.

This approach proves especially effective in family law situations. Facilitated by a third party, spouses use this process to reach agreements on divorce, custody, visitation, support payments, and most other cases.

Are Divorce Mediation Agreements Legally Binding?

The short answer is no, mediation is not legally binding. You go through the process, but if the ultimate decision is unsatisfactory, terms aren’t forced on you.

At the end of the day, both parties must agree to the conditions on their own.

Mediators don’t pass judgment; they’re only present to grease the wheels and help the spouses reach agreements on the issues at hand. A judge ultimately must sign off on any divorce decision, but may not if a deal skews too far to one side.

Once official, it becomes legally binding.

How Long Does The Mediation Process Take?

How long mediation takes varies widely from case to case. However, it is usually much faster and more streamlined than a lengthy trial. Most mediations only last a day or so.

They’re also often easier to schedule and fit into your life rather than taking what a court gives you, so they can be much more convenient. In most situations, mediations are less complex than cases that go to trial.

As with other cases, the more complex and contentious, the longer and more in-depth the process. Shorter cases also often mean lower costs, a nice bonus.

Related Reading: Dividing Debt in Divorce

Is Mediation Confidential?

One reason people choose mediation is its greater confidentiality. Cases don’t become part of the public record, and conversations and communication between spouses stay private.

A professional code of conduct compels mediators to keep information confidential and under wraps.

As with most legal matters, there are, of course, exceptions, like cases of child abuse or potential criminal actions that may cause harm. Still, it’s a behind-closed-doors affair, and it’s easy to see why celebrities often opt for this route rather than a traditional court divorce.

How Does It Differ From Arbitration?

Arbitration is another form of alternative dispute resolution. It’s similar to mediation in some regards but different in others. Again, both parties meet with an independent third party rather than going to court. While spouses work together in mediation, arbitration can resemble a trial.

Both sides present arguments and evidence, and in these cases, the arbitrator has the power to make rulings.

Entering into the arbitration process is voluntary, but unlike mediation, the resulting judgments are legally binding.

Related Reading: Is Arbitration the Right Choice For You?

When Does Mediation Work Best?

Because mediation is not legally binding, it works best when divorcing couples are relatively amicable. Or at least when they’re willing and able to play nice long enough to hammer out an agreement.

People also choose mediation because it’s often significantly cheaper, faster, and less stressful than a standard trial.

Many couples try mediation before heading to court. Instead of appearing before a judge, the process essentially involves a small group working together to achieve a common goal.

Types Of Mediation

Within the broader category of mediation, several approaches exist. It’s important to pick the best mediation style for you and your case.

You can choose from evaluative, facilitative, and transformative mediation. Each varies in approach and has its own distinct characteristics.

The best mediation style for you depends on your circumstances and the specifics of your case. With the differences, there are situations where each may be the ideal fit.

Evaluative Mediation

This approach provides spouses with a clearer understanding of what a trial might look like in their case.

The mediator uses this opportunity to demonstrate how a judge or jury might look at the specifics and even point out flaws in one party’s position.

Because evaluative mediation is similar to an actual trial, it often arises in civil cases, such as divorce proceedings. There’s room to work with conflict, and former judges or attorneys who can explain the strengths and weaknesses of a particular case often serve as mediators.

In these situations, it’s common for the facilitator to put the spouses in separate rooms and bounce back and forth as each side makes offers and counteroffers.

Ultimately, the aim is to meet in the middle and reach a satisfactory resolution for everyone. Of the three approaches, evaluative mediation focuses primarily on the result. The goal is to reach an agreement and avoid a trial rather than spare individual interests and feelings.

If you’re simply looking for a settlement, this may be the best mediation style for you.

Facilitative Mediation

In this mediation style, the third party plays a less significant role. He or she guides spouses through the process and makes sure they understand their options and the impact of their choices. Ideally, the result is a mutually beneficial resolution that both parties agree on.

In facilitative mediation, the moderator is more removed. He or she asks questions and steers the proceedings but doesn’t usually interject or make suggestions.

Ultimately, it falls to the spouses involved to negotiate and agree on terms.

This may be the most effective mediation style in some cases, especially when the two sides share similar goals. In high-conflict situations, it may not always be as effective.

Transformative Mediation

This mediation style is most common when, in addition to settling a dispute, the two sides want to address and repair problems in their relationship. While the mediator supports both parties, this strategy aims to get each side to understand the other’s needs and position.

Transformative mediation is similar in style to its facilitative cousin but differs in a few key ways. A newer approach, it’s often looked at as a touchy-feely strategy.

Using this style, the mediator serves more as an enabler, helping the two parties grow and change—to transform.

It primarily focuses on mending fences and repairing a damaged relationship rather than reaching a definitive resolution. This can alleviate some pressure on clients, but it often leads to a longer process and fewer tangible results.

A transformative approach is typically the most effective mediation style when participants want to preserve or salvage a relationship. If children are involved, this can be useful for parents seeking to maintain civility and a future relationship for the sake of the children.

Related Reading: Ways to Rebuild Finances And Credit Score After Divorce

Why Choose Mediation?

So, the question of the day is, why choose mediation?

The quick answer is that it makes divorce quicker, cheaper, and easier. At least if you and your ex can play nice and act like adults.

Mediation is also typically less stressful. Instead of the pressure of appearing in court, presenting your case, and waiting for a decree, this is two people in a room working out an arrangement that, ideally, everyone can live with.

Mediation doesn’t work in every case. Some divorcing couples try but eventually end up in court. It’s not right for every situation, but if you can make it work, mediation can be the optimal choice to end your marriage.

Related Reading:  Are Divorce Records Public?

Should You Hire A Lawyer For Mediation?

One reason many couples opt for mediation in divorce is that it doesn’t require legal counsel. Still, hiring a lawyer is worth consideration.

This is especially true if your spouse has an attorney, as representing yourself can put you at a significant disadvantage. An experienced lawyer accompanies you to sessions and offers advice. And before you sign anything, they also ensure a settlement is fair and fits your needs.

Even if you do hire an attorney to help with mediation, the cost will almost certainly be much less than if you go to court.

Methods of dispute resolution, such as mediation, offer an alternative to court proceedings in divorce. But under that umbrella, you find many methods.

Some mediators subscribe to one or the other, while more use a pick-and-choose approach. The best mediation style for your case depends on the specifics of your situation, your needs, and your goals for the process.

Related Reading: When to Hire a Divorce Lawyer